A week away, and a deeply complex, multi-layered issue to think about – the allegations of rape against Geoff Clark published in the Age and the Herald last Thursday.

Let’s start with Pat O’Shane, because she’s easily dealt with. O’Shane began her Lateline interview with a condemnation of trial by media. “Well, the first thing I want to say, Tony, is I think it’s tabloid sleaze at its best – or worst, however you like to characterise it. Now, it seems to me that what we’re seeing in the absence of any successful criminal legal proceedings, a trial by media. And that’s outrageous.”

She then judges the four women making the allegations on the basis of the media report.

JONES: I guess that’s what surprises me in what you’re saying Pat O’Shane, that you seem to have no sympathy for these women.

O’SHANE: Tony, I can only tell you on the basis of my experience that people will raise allegations for all sorts of motives, including some exceedingly base motives, and I can tell you on the basis of my experience that a lot of women manufacture a lot of stories against men. Now, I know a huge number of my feminist friends are going to be shocked to hear me say it, but we don’t live in fairy land. We live in a real world.

And I find it extremely difficult to accept, especially in the case of one of these women, who was the daughter of, I take it from the report, an Anglo-Australian fellow of some standing in the community, that she was afraid to report the matter because of Geoff Clark’s alleged violence and gang leadership, which allegations, by the way, are extremely spurious in themselves, since there is absolutely not a shred of anything further being raised in support of such allegations.

They’re just thrown off in broad general terms, which just leave one wondering, “Well, what was that all about?”

JONES: Now, Mr Clark is saying that there’s a conspiracy against him. It’s because he’s questioned the legitimacy of this country and the treatment of Aboriginal people. Do you agree with him on that?

O’SHANE: Well, of course, there is a lot of truth in what he says in that regard, Tony. If I were to say to you there are allegations against senior Liberal Party politicians in the Federal Government accused of sexual assault when he was at university – Sydney University, would you run that?

Of course not. For the very reason that he is who he is.

But if it’s Geoff Clark, head of ATSIC in this country, yes, it gets run. One has to question the motives in those circumstances…

JONES: But do you seriously think that these women are part of such a conspiracy?

O’SHANE: I put nothing past anybody, let me say that Tony. I don’t know these women. I haven’t heard their stories, apart from what is reported in the newspaper, and I’ve just made my comments about those.

The case against O’Shane is open and shut. Based on a media report she decries, she clearly judges the women unreliable and gives credence to a conspiracy theory which casts them as deliberate liars. This prejudgment is intolerable behaviour for any self-respecting lawyer, let alone a magistrate. One has only to reverse the comments to see how untenable they are. If O’Shane had said, “Of course, most men who rape deny the charge” she would clearly be accusing Geoff Clark of rape.

One need not even enter the sexual and race politics embedded in this issue to find O’Shane guilty of the very behaviour she accuses the Fairfax press of perpetrating. So now – bereft of any defence for her actions, she complains of the general remarks of a white, male Supreme Court judge about feminists, homosexuals and the like. There is a crucial difference – those remarks were not related to a particular case where the facts were at issue.

And the implication of her counter-attack, that she is being targetted because she’s black and a woman, is nonsense. Her remarks could have easily come out of the mouth of a white male judge 30 years ago. If they came out of such a mouth now, he’d be condemned in spades. Justice Bollen was crucified some years ago when he suggested that a wife might expect “rougher than usual handling” from her husband. In fact, O’Shane is being treated more gently than she would have been had she been a white male.

We can see from the transcript that O’Shane’s remarks were no slip of the tongue. She explicitly states that feminists will be upset. She knows that over the last several decades women have fought the inbuilt bias in the justice system against women alleging they have been raped, including the fact that a women’s sexual history is fair game while the man’s is off limits.

Sure, a few women fabricate rape, about the same proportion as allegations on non-sexual matters. But to say this is commonplace, to the extent that a woman’s version of events should be doubted as a matter of course, attempts to take us back to the days before women won respect for their rights on being raped.

One heartening fact in all this is that O’Shane has not taken us back to those dark days. Her remarks have been unacceptable to the NSW Attorney-General, a man, the chief magistrate, a woman, and to men and women across the spectrum. That’s progress.

One disheartening fact is that O’Shane made the remarks despite the fact that Aboriginal culture is so deeply misogynistic that many Aboriginal men still think it appropriate to rape and assault women as a matter of course. In this regard, Aboriginal women are still fighting the battle won, at least in part, in the white culture for years. If their allegations are true, the courage of the three Aboriginal women to come forward is enormous. Yet O’Shane casts a shadow of suspicion over her black sisters in the course of defending a male Aboriginal leader from allegations which neither she or we know are true or false. This is sexual and race politics on collision course, and O’Shane has picked loyalty to the latter at the expense of the former, which makes its own statement about women’s value in Aboriginal politics.

And here is the rub for Geoff Clark. Does he represent the Aboriginal peoples – men and women? If he truly does, should he not stand aside, for now at least, to show Aboriginal women that he does indeed respect their rights and interests? Is it enough for him to merely deny the allegations and claim a giant conspiracy he will not detail? And if he does not step aside, should he not at the very least sue the Fairfax press for defamation to allow the matter to be tested in Court?

A serious problem in this mess is that the allegations are out, the police will not prosecute, and we are at stalemate. Noone knows the truth of the matter. It sits there, festering. As Labor’s Aboriginal affairs spokesman Bob McMullan said in a statement, the allegations “are extremely serious”. “However, Mr Clark, as any other Australian, has a right to the presumption of innocence until proven otherwise. Any further activity in relation to these allegations is a matter for the Police. It is in the public interest that this matter be dealt with in a timely and transparent manner.”

Which brings me to the most difficult issue of all, the decision to publish.

Let’s get out of the way the ludicrous notion being peddled by the ATSIC deputy chairman Ray Robinson – coincidentally himself convicted of rape until it was overturned on appeal and he was found not guilty at a retrial – that Fairfax was racist to publish.

Robinson charges that “non-Aboriginal leaders … would not be subject to this type of treatment.Why is there another rule for Aboriginal leaders?” So does O’Shane. “If I were to say to you there are allegations against senior Liberal Party politicians in the Federal Government accused of sexual assault when he was at university – Sydney University, would you run that? Of course not.”

I can give you an example right now. Some years ago, I published a story that the wife of WA Liberal Senator Noel Crichton Brown had taken out a domestic violence order against him some years before. It was a controversial story at the time, with many arguing that the matter was private. My defence was that domestic violence had finally been taken out of the closet, and that federal and state leaders had agreed that it was a crime. I won’t say I was completely happy about what I’d done – far from it. It was a very difficult decision to make. And it was interesting that while little was done after that revelation, Crichton Brown was later expelled from the Liberal party for telling a female journalist he would “screw your tits off” if she published a certain story. A nice case of the socially unacceptable being more serious than private domestic assault.

We would publish if the alleged perpetrator was a white public figure. This contrary claim is reverse racism at its most destructive. It is untrue, it is self-serving, and it debases the currency of race politics. It also raises serious questions about the quality of some of our present Aboriginal leaders and their fitness for office.

If a white politician was accused of serial rape, he would stand down or be stood down by the Prime Minister. Clark, in contrast, remained chairman even while a criminal prosecution for rape was on foot. In my view it is the Aboriginal leader who is getting more favourable treatment than his white counterpart, and every Australian knows it. How damaging is this distasteful fact?

By the way, to me it is very significant that it was the Fairfax press which published the allegations. The Fairfax papers are noted for their long-held support of the Aboriginal cause. A media organ antagonistic to Aboriginal interests which published the story would make the whole murky affair even more murky. For O’Shane to allege a racist conspiracy by Fairfax is just plain silly.

But there remain incredibly important questions about publication. The fact is that police know of all four cases. They prosecuted one, and Clark was acquitted due to lack of corroborative evidence. The other three women were not called to give evidence at the trial. This is because of the strict rules of evidence, which mean allegations of similar crimes cannot be used in court as evidence that the crime being prosecuted was committed because the admission of such evidence would be prejudicial to the defendant. For the same reason, a defendant’s previous convictions cannot be raised in the trial, even if they were for rape.

The only exception to the rule is “similar fact” evidence. If other allegations follow an identifiable pattern, they may be introduced in evidence. But the exception is very strict, and basically allows evidence to be admitted only if the modus operandi was precisely the same.

So if Clark was charged with the four alleged rapes, in no case could the other three women be called to give evidence. You can see the bind. For example, ten rapes committed in ten different ways without witnesses a long time ago and the perpetrator gets off scott free.

So Clark is safe under the law. That does not mean he is innocent or guilty. Does the media then back off and do nothing? And if it chooses to do something, in what circumstances should it do so?

The Age gave the following reasons for publishing the story.

“Three months ago The Age set out to profile Australia’s most powerful Aboriginal politician. In the process, our reporter travelled widely and spoke to many people.

What emerged was a picture of a hard and powerful man who wielded his power to great effect. But there was also something else: a deeply disturbing pattern that reached far back into Mr Clark’s life.

What we uncovered was a compellingly consistent story. We found four women who accused Geoff Clark of raping them inn a series of attacks in the 1970s and 1980s.

We acknowledge that these are claims stretching back 30 years but the stories of these women is no less harrowing today. They are all prepared to be named. We have tested them on their accounts and they have remained steadfast. We can find no reason why they would not be telling the truth.

These are grave and damaging accusations but we believe they have to be published. Geoff Clark is a prominent public figure. It is in the public interest that these serious claims against him are revealed.”

You can see the problem. A media group publishes allegations because it is convinced they are true. This is a grave responsibility.

Imagine for a moment that you are a public figure. Someone accuses you of rape in the distant past. You did not commit rape, but the damage done to your reputation is almost irredeemable. You are put in the position that to save yourself you must initiate expensive, time consuming, and very unpleasant defamation litigation.

To my mind, there is no doubt that a single allegation of rape would not be published. It is the number of allegations which allowed the publisher to cross the line. While the evidentiary rules against admitting other offences help an alleged serial rapist in Court, the number of similar complaints helps the alleged victim when it comes to media publication. Deprivation of liberty is, after all, more serious than deprivation of reputation.

Then there is the question of relevance. It is clearly in the public interest for a public figure in Clark’s position to be investigated, and substantial allegations published. But what if, for example, the person concerned was the head of a corporate watchdog? To me, you cannot draw any lines here. The limits do not depend on whether one is a public figure or not, or the duties one carries out as a public figure, because we are talking about a serious criminal offence.

Instead, the limits are purely practical. If you are not a public figure, the media will not investigate your past. If you are a public figure, you run the risk of investigation.

Then the question is whether serious, “compelling” evidence of wrongdoing will be published. Clearly, publication is defamatory. The judgement is two fold. For the publisher’s lawyer, the question is “Can we prove on the balance of probability that the allegations are true?” If yes, the editor’s question is “Are we prepared to pay the bills for an expensive defamation trial?” A related question is “Will he sue?” Another related question is “Will the damages bill be so high if we lose that the risk outweighs the desire to publish?”

To me, there is not enough on the public record to know whether the decision to publish was correct. In a case where a potentially frightening precedent is created, the public should be told by the media group:

1. The precise circumstances leading to the investigation. For example, did the police, frustrated by being stymied in court, lead the reporter to the witnesses, perhaps hoping other victims might come forward? Did the reporter happen upon them through Geoff Clark’s enemies? I know some sources cannot be revealed, but a story such as this does not pop up from nowhere, and as much information as possible should be provided to the reader.

2. The evidence which convinced the publisher of the truth of the allegations. Merely to state that the witnesses didn’t change their story is not enough. We need to know why the publisher believed the story, the evidence upon which that assessment was made, in what ways the Age tested the truth of the allegation’s and the reliability of the accusers and, if there is any reason to question the motivation of the accusers, the reason why motivation was judged not to be tainted.

3. The processes by which the decision to publish was made. In my view, it is not enough to state baldly that “it is in the public interest that these serious claims against him are revealed”. We need to know, precisely, the public interest considerations the publisher found relevant in coming to his decision – both for and against publication – and how he weighed up those competing factors.

The reason I believe these three matters should be addressed is because we are relying on the publisher’s judgement, and the publishers judgement has the potential to destroy careers. The law is one way to test allegations. The law has not helped these women. The media are another way, and there must be strict, self-imposed accountability on the media. Yes, the public has the right to know. But they have the right to know everything that the publisher can reveal. I mean, public servants must give citizens written reasons for decisions which effect them – surely the media must have, at the very least, a commensurate responsibility.

It seems likely that this story will not be resolved, one way or the other. But damage has been done, and it is vital in the public interest that the precedent this sets is debated and analysed on the merits to create clear guidance on when the power of the media to disclose and destroy should and should not be exercised.

Now there could be strategic reasons for the absence of full disclosure from the Age so far, in that they must have expected a writ (none so far). I can tell you what happened at the Herald. We got the story the day before the Age intended to publish. The Herald and the Age have an agreement to share good stories which are not generated out of the Paper’s Canberra bureaus.

In such swaps, the paper getting the story from the sister publication relies on the latter’s judgement in matters of truth and journalistic rigour. The papers share the virtually the same requirements of journalists and standards of journalism.

The first question asked by the Herald’s deputy news editor, Mark Coultan, was “Would we publish if the story concerned a powerful right-wing figure?” That was easy – yes.

“The fact that it was an Aboriginal leader made me think twice, and you ask the question – is this some anti-Aboriginal conspiracy?”

The Herald lawyers read the story and consulted the Age lawyers.

The one hole Mark could see in the story was that it stated that all the women had spoken to the police but did not reveal the status of the police inquiries. The Age advised that the story was not dependent on police inquiries, but its own. Mark got a Herald reporter to ring the Victorian police, and was told that they were not taking the matter further. This was inserted into the story.

Mark’s other worry was that Clark may not have been given sufficient time to reply, the allegations having been put to him the day before. His concerns were alleviated when Clark issued a statement on the matter.

An important factor, of course, is that the Age would publish the next day anyway and that it would quickly go national. By publishing the story in the Herald, our readers would know the facts before the furore.

Today, Jack Robertson’s Meeja Watch looks at the Clark case. George Hirst, editor of the far north Queensland newspaper the Magnetic Times, took up my challenge to question politicians on the ground about pollies super, and I’ve posted his excellent report. Thanks to those who emailed hoping I’d get well soon.

MEEJA WATCH

The Triumph of the barbarians

By Jack Robertson

It’s been a noisy two weeks for the Fourth Estate.

The McVeigh execution was a journalistic farce of Kafka-esque dimensions. Whatever your position on Capital Punishment, no civilised person could endorse the way it was fetishised to the point where blah blah blah. It was the most sickening blah blah blah I’ve ever blah blah blahed, and unless journalists stop blah blah blahing, then blah blah blah blah blah.

Now in Oz, the allegations against Geoff Clark. Whatever your position on the seriousness of Rape, no civilised person could endorse the decision to publish, given that police weren’t intending to blah blah blah. It was the most outrageous blah blah blah I’ve ever blah blah blahed, and unless journalists stop blah blah blahing, then blah blah blah blah blah.

Actually, I was convinced by the four women’s accusations. Then again, I was convinced by Clark’s denials, too. I was convinced by Pat O’Shane. Then I was convinced by Pat Staunton’s denunciation of O’Shane. I was in turn convinced by John Howard, Kim Beazley, the ATSIC commissioners, the Civil Libertarians, the Age’s editor, Andrew Rule, the legal experts, every single columnist on the planet, Clark’s enemies, his friends, the man-in-the-street and the Ordinary Australian. I now believe absolutely everything, and absolutely nothing, I see and hear in the Modern Meeja. I’m a child of the Modern Meeja Times.

Journalism is as sick as a dog. Even our good young Reporters are doomed to be bad Reporters now, because the only weapon journalism ever had was its own credibility, and all the Boomer generation has done during their watch is to collectively ensure that the Public will never again ascribe credibility to any journalist.

They’ve progressively transformed a career in Reportage into one pointless road-trip, with the stories simply along for the ride to pay for the gas. Janet Malcolm is still the one writer who has come close to honesty about New Journalism – it has become, no matter how genuine the individual Reporter, a collective exercise in the exploitation and betrayal of Humanity.

I’m beginning to think that the only possible answer is to sack every journalist over fifty and start completely from scratch using only anonymous Reporters, so methodologically-compromised is the Watergate generation.

Ultimately, McVeigh’s execution and Clark’s rape allegations cannot be any more than just the latest in the long series of adversarial soap operas that has increasingly defined news Reportage ever since Nixon was taken down by Woodward and Bernstein.

It shouldn’t be this way; rape and execution are both deadly serious. But the Meeja has become hopelessly dirty. Like a reverse Midas Touch, it automatically diminishes everything it touches – rape, execution, war, love, sex, death, genocide, global catastrophe. That small square box-with-a-lens, the ten second soundbite, those 1000 word limits, that ninety second satellite feed – they transform real life into mere self-parody, gold into lead.

The problem isn’t the message, or even the journos, who mostly try like hell to do the impossible – make the same old stories hit home, somehow, anyhow. But just how can you interest anyone (who doesn’t have to live there) in the Middle East, these days? All you can do is jack up the level of sensationalism.

It’s a limitation of the Meeja itself. No matter how profound the subject or adroit the Reporter, a story can never be much more than just the next few frames in that long, blaring MTV video that now incorporates OJ Simpson’s bloody running shoes, Bill Clinton’s dob of dried spunk, the crumpled Mercedes in the Paris underpass and those smart bomb’s-eye views of rapidly-approaching Iraqi bunkers.

Perhaps serious journalism was doomed the second the first lurid TV images from Vietnam flashed into our homes, or perhaps the moment when the irresistibly seductive idea of the Deep Throat informer took hold. Perhaps it’s just that the corpse is taking a while to rot.

Watergate, OJ-gate, Diana-gate, Clintongate, McVeighgate, Clarkegate, Yawngate. This is the cyclic Meeja Paradigm the Boomers bequeath, a 24-hour linked and layered electronic hypertext of regurgitated conspiracy theories, manufactured emotional hysteria, adversarial confrontation.

A blanket of Meeja noise in which so much nonsensical babbling now goes on that Baudrillard and Foucault are starting to sound like plain-talking Good Public Citizens in comparison. It’s all very exciting and chin-stroking if you’re a Reporter, a Columnist or a Cultural Studies Professor, I suppose, but for the overwhelming majority of the world’s people, Journalism is over.

It’s gone. It’s broken. It doesn’t work for us any more, it works only for itself. How can it do otherwise, when it’s impossible to distinguish, from outside it, the real from the staged, fact from fiction, substance from spin, and profound Human truth from a tossed-off throw to a dunny roll ad?

The Blahbarians have come at last, and us Human Beings can’t get a word in edgeways.

POLLIES SUPER

Magnetic Times 15 – 28 June 2001

 

Questioning the Candidates

FEDERAL ELECTION WATCH

This issue we wish to ask a question which concerns independent MP Peter Andrens Parliamentary (Choice of Superannuation) Bill 2001 which would enable parliamentarians the

opportunity to vote for the option of being able to opt out of the compulsory Parliamentary Super scheme.

The question comes in two parts. The first: Would you like to have the right to opt out of the compulsory Parliamentary Superannuation Scheme in which taxpayers provide a 69% contribution and be able to join an ordinary super scheme with the rules that apply to all other salaried Australians which include a 8% employer contribution? If so, if elected would you support Peter Andren’s bill which would give you the right to exercise that choice?

 

Peter Lindsay (Sitting Liberal Member for Herbert):

I would go further than the Times question asks. Not only would I support the right of Members and Senators to join the super scheme of their choice, I have the view that Members in the Parliamentary scheme should not have access to their super before reaching age 55. I support the Prime Minister who has taken the lead on this issue and intends to bring changes to the scheme forward within about two weeks. (MARGO: Tricky, Peter. Howard wants to change ONLY the age 55 principle, and then ONLY for future politicians. The super-generous scheme otherwise remains intact.)

 

Conway Bown (Independent candidate):

Yes, I agree wholeheartedly with Mr Andrens bill to allow parliamentarians the opportunity to choose a scheme that is in line with that offered to every other Australian as opposed to the incredibly generous taxpayer funded scheme currently in place. And Yes, if elected, I would have absolutely no hesitation in choosing Andrens scheme. One in, all in, I say.

 

Jenny Hill (Labor Candidate):

(1) I dont think it is sensible to create two or more different schemes for the same group of workers.

(2) I would endorse the move to bring politicians superannuation closer in line with community standards especially in relation to the age at which MPs can get access to their pensions.

(3) I believe the best body to consider the MPs superannuation scheme is the Remuneration Tribunal which is independent and looks after MPs entitlements EXCEPT superannuation which is operated under an Act of Parliament and administered by a trust operated by the Minister for Finance.

Editor’s note: Incidentally, Peter Andren has noted: “If Kim Beazley did his research he’d find the Remuneration Tribunal has already given the thumbs up to the salary and super package MPs receive. In its 7th December 1999 report on MPs pay the Tribunal concluded it was satisfied that the remuneration package for Senators and Members (salary, superannuation and vehicle) is now competitive.”

George Hirst wrote: In his answer, Member for Herbert, Peter Lindsay said, I would go further than the Times question asks. Not only would I support the right of Members and Senators to join the super scheme of their choice, making a clear statement of support for Independent Peter Andrens bill.

Our Members statement was, according the Peter Andren’s office, the first solid expression of support for the bills option by any member of the government across the country so MT decided to ask if our member was prepared to let his feet follow his tongue and cross the floor of parliament on an issue that irks probably more Australians about their representatives than any other and, if need be, vote against his own party.

The opportunity to applaud Peter Lindsay for his courage soon evaporated however when we sought the answer. Mr Lindsay said, “I don’t want to add anything at this stage until I see what the PMs task force comes up with. This issue is not straightforward as there are many things to be considered. It therefore would not be prudent to shoot from the hip without the benefit of knowing the outcome of the PMs committee consideration.”

Its a pity, it would only be a short walk to the cross benches where Peter Andren sits. The Labor party sounds, as Herbert candidate Jenny Hill confirms, like it wants to make the right sounds and even support the Prime Minister’s plans to push back the access age to 55 but that is as far as it goes. Her party line follow-up comment which Peter Andren has exposed as the Beasley line and not much more than a sensible sounding sham, gives little cause for hope to cynical voters while John Howard’s plan to defer superannuation entitlements till age 55 won’t apply to anyone already in Parliament. More than a bit clubby you may think.

Little surprise then that the only candidate to make himself perfectly clear with no outs was One in, all in Independent, Conway Bown.